Citation Nr: 0524876
Decision Date: 09/13/05 Archive Date: 09/21/05
DOCKET NO. 01-07 563 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for a skin disorder or
disorders, to include as due to exposure to ionizing
radiation in service.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Counsel
INTRODUCTION
The veteran had active service from June 1948 to February
1954, from May 1954 to May 1957, and from July 1957 to May
1962.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.
The case returns to the Board following a remand to the RO in
August 2003. In the August 2003 remand, the Board noted that
the veteran had a claim for service connection for a
respiratory disorder based on exposure to ionizing radiation
that the RO was apparently in the process of developing. To
date, there is no indication in the claims folder that the RO
has adjudicated the claim. The matter is again referred to
that office for the appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
The issue on appeal has previously been characterized as
service connection for a skin disorder or disorders solely on
the basis of exposure to ionizing radiation in service. In
the August 2003 remand, the Board indicated that there were
three bases on which service connection could be granted: (1)
presumptive service connection pursuant to 38 U.S.C.A. § 1112
(West 2002) and 38 C.F.R. § 3.309(d) (2004);
(2) direct service connection pursuant to 38 C.F.R. § 3.311;
and (3) direct service connection pursuant to 38 C.F.R. §
3.303. The Board found that there was no support for
granting service connection for the first two bases, noting
that there was no evidence or presumptive disease and no
confirmation of an in-service radiation dose. However, for
purposes of direct service connection under 38 C.F.R. §
3.303, the Board acknowledged that the veteran had submitted
some evidence of limited in-service occupational radiation
exposure. The Board remanded the case for a medical
examination and opinion as to whether the veteran's skin
disorders were related to that limited occupational radiation
exposure.
The report of the February 2004 VA examination showed
diagnoses of actinic keratosis, history of basal cell
carcinoma with excision, history of squamous cell carcinoma
with excision, and history of melanoma in situ with excision.
The veteran had described a history of in-service exposure to
radiation. However, the examiner linked the skin disorders
to sun exposure. He noted that the veteran indicated that
the skin cancers were noted in 1991, that review of the
claims folder showed initial treatment in 1995. The examiner
also noted that the veteran was discharged from service in
1954. He observed that the disorders were first noted
"37(+) years after his discharge from military service" and
that there was "no medical literature to support the
veteran's claim [that the disorders were due to radiation
exposure]." The examiner concluded that it was "not at
least as likely as not that [the veteran's] skin cancers are
related to his military service."
First, the Board notes that review of the claims folder
discloses that the veteran had additional service after 1954,
with his final discharge from active duty in May 1962.
Second, in June 2004, the veteran submitted a statement in
which he related that he had significant in-service sun
exposure. He stated that he had been stationed in the Ryukyu
Islands (Japan), where the sunlight was much more intense
than locations in the United States. He was exposed to
sunlight for extended periods of time and without sun
protection. In that and subsequent statements, the veteran
argued that his in-service sun exposure, alone or in
conjunction with his in-service radiation exposure, caused
his skin disorders.
Although the claim has previously been evaluated solely on
the basis of exposure to ionizing radiation, the veteran has
raised a new theory of entitlement. The claim for service
connection based on this theory has not been developed or
adjudicated. When a veteran has made a claim for a
disability as a result of a specific in-service occurrence of
a disease or injury, VA's duty to assist attaches to the
investigation of all possible in-service causes of that
current disability. Schroeder v. West, 212 F.3d. 1265, 1271
(Fed. Cir. 2000).
Direct service connection generally requires evidence of a
current disability, evidence of an injury or disease in
service, and competent evidence of a relationship or
connection between the current disability and that in-service
injury or disease. Boyer v. West, 210 F.3d 1351, 1353 (Fed.
Cir. 2000). The Board notes that the veteran already has
diagnoses of several skin disorders. In addition, the
veteran is competent to relate and describe incidents that
occurred in service, including his exposure to the sun.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Finally, a VA
medical opinion relates the disorders to sun exposure.
However, the examiner did not have information concerning the
extent and duration of the veteran's sun exposure, and
therefore could not address the question of whether the skin
disorders he ultimately developed were associated with that
alleged sun exposure. The Board therefore finds insufficient
evidence to establish service connection, but sufficient
evidence to trigger the requirement to obtain a medical
examination and opinion on this theory of the claim.
38 U.S.C.A. § 5103A(d). To that end, a remand is required.
Accordingly, the case is REMANDED for the following action:
1. The RO should arrange for the veteran
to be scheduled for a VA dermatology
examination to determine the nature and
etiology of any dermatologic disability
present. If possible, the RO should
arrange for the veteran to be seen by the
examiner who conducted the February 2004
VA examination. Otherwise, the veteran
should be examined by an appropriate
specialist. The RO should advise the
veteran that failure to report for a
scheduled VA examination without good
cause may have adverse consequences for
his claim.
The claims folder must be made available
to the examiner for review for the
examination and the examination report
must indicate whether such review was
accomplished. Review of the claims
folder should include particular
attention to service medical records, the
report of the February 2004 VA
examination, and the text of this remand.
The examiner is asked to elicit from the
veteran a detailed history of his in-
service sun exposure and history of skin
disorders. The examination should
include any test or study deemed
necessary by the examiner. The
examination report should include a
diagnosis of any skin disorder present.
Based on findings on examination and
review of the claims folder, the examiner
is asked to offer an opinion as to
whether there is at least a 50 percent
probability or greater that any of the
veteran's skin disorders is related to
service, to include sun exposure during
service as described by the veteran,
alone or in combination with limited
occupational radiation exposure in
service. The examiner should include an
explanation for the opinion that includes
a discussion of the types of skin
disorders present, the medical principles
relating to their likely etiologies, and
the date of onset of the disorders in
relation to the veteran's separation from
service in May 1962. If the examiner is
unable to provide the requested opinion,
the report should so state.
2. After ensuring compliance with these
remand instructions and completion of any
other required development, the RO should
readjudicate the issue on appeal, to
include consideration of direct service
connection due to the veteran's alleged
sun exposure in service. If the
disposition remains unfavorable, the RO
should furnish the veteran and his
representative a supplemental statement
of the case and afford the applicable
opportunity to respond.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The veteran has the
right to submit additional evidence and argument on the
matter or matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C. §§ 5109B, 7112).
_________________________________________________
GARY L. GICK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).